HKSAR v. HO CHI SHING

HCMA199/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 199 OF 2003

(On appeal from NKCC 7906 of 2002)

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J U D G M E N T

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1. The appellant in this case faced two charges :

(1) exposing for sale infringing copies of copyright works for the purpose of, or in the course of, any trade or business without the licence of the copyright owner, contrary to section 118(1)(e)(ii) and section 119(1) of the Copyright Ordinance, Cap.528; and

(2) possession for the purpose of, or in the course of, any trade or business of infringing copies of copyright works with a view to committing any act infringing the copyright without the licence of the copyright owner, contrary to section 118(1)(d) of the same Ordinance.

He was convicted after trial and sentenced to six months' imprisonment for each offence, to be served concurrently. He now appeals the conviction.

2. The facts are straightforward. Customs officers, on patrol in the Golden Shopping Arcade, Shamshuipo, visited Shop A1. Among other things, they found 257 CD-ROMs for sale on display racks, and a further128 stored inside the shop. It was not disputed that all the CD-ROMs were infringing copies of copyright works. The Customs Officers said that four people were in the shop, three were customers selecting discs and the fourth was the appellant who was standing next to the cash register at the entrance of the shop. They heard him shout : "Feel free to look, feel free to choose", whereupon they apprehended him.

3. He remained silent under caution and chose not to give evidence himself but called two witnesses on his behalf.

4. The first said that he had gone with the appellant to change a disc and that the appellant was not working at the shop. He agreed that the appellant had said to him in a loud voice : "Feel free to look, feel free to choose", but this was because the appellant was familiar with the shop, not because he was working there. The witness said that he told the Customs Officers that the appellant was only there to change a disc and that he saw the appellant do likewise.

5. DW2 was a security guard at the arcade. He watched the incident from the top of the stairs, one floor above the shop. He agreed that it was very noisy, with many people coming and going. He said that he had seen the appellant ask the cashier if he could change a disc and that the appellant had explained this to the Customs Officer.

6. There were stark differences between the evidence of the two Customs Officers and the evidence of the two defence witnesses. The magistrate noted them and discussed them in some detail, and having rehearsed the evidence, she stated that she believed the two Customs Officers and accepted their evidence. She analysed the evidence of the two defence witnesses and explained why she did not accept what they said.

7. The appellant refers me to a number of questions posed rhetorically by the magistrate in her Statement of Findings and points out that these questions were not asked of the witnesses. He urges upon me that it is unfair for the magistrate to pose these questions and find against the appellant in each case when the questions were not put to the witnesses. However, the majority of the questions he refers me to were rhetorically asked of the defendant. He did not give evidence and it was difficult to see how the magistrate could have ensured that the questions were put to him.

8. This is here a question of style. The magistrate was, in her Statement of Findings, explaining how she arrived at her conclusions. She illustrated her thought processes by posing and answering the questions. In doing so, she was not saying that the questions were put and were not answered. She was pointing to the failures in the evidence.

9. The appellant says that DW2 was independent and that he gave evidence that the defendant explained to the Customs Officers why he was at the shop. The Customs Officers had denied there was any such conversation and the witness' evidence was therefore of some importance. The appellant tells me today that the witnesses' evidence was not subject to cross-examination by the prosecution and that in such circumstances, the magistrate was wrong to disbelieve it.

10. What the magistrate said about this part of the witnesses' evidence was this :

" DW2 gave a very detailed account of the conversation between the defendant and the Custom[s] Officer who arrested him. This was very strange because he was observing from top of the stairs which was some distance above the shop and it was very noisy. How could he hear every detail between the defendant and the Custom Officer under such circumstances? Under cross-examination, DW2 admitted that it was the defendant who told him the detail of the case including the conversation when the defendant asked him to be a defence witness. I have great suspicion that DW2 was telling what he was told. I do not accept DW2's evidence."

11. We do not have a transcript and do not know exactly what questions were asked in cross-examination, although from trial counsel's closing speech, it would appear that the witness's contention that he heard the conversation was not specifically queried. We do know, however, that the magistrate had heard evidence about the scene, that she saw and heard this witness give his evidence. She disbelieved him, and I cannot in the circumstances of this case say that she was wrong to do so, whether or not he was specifically asked about one part of his evidence.

12. This was, above all, a matter of credibility. The magistrate had the advantage which I do not have. She had seen the witnesses give their evidence, she had analysed the evidence and explained why she believed the Customs Officers and not the defence witnesses.

13. There was in reality only one inference to be drawn from the defendant shouting : "Feel free to look, feel free to choose" as he stood by the cash desk in a shop selling infringing copies, and the magistrate drew it.

14. Her reasons cannot, in my view, be faulted.

15. The appeal is dismissed.